Handcuffed public defender says she simply wanted judge to listen to her argument

Las Vegas judge handcuffs public defender in courtroom

By DAVID FERRARA
LAS VEGAS REVIEW-JOURNAL

A group of Clark County defense attorneys is backing a colleague who was handcuffed in Las Vegas Justice Court this week.

On Monday, Justice of the Peace Conrad Hafen directed a court marshal to restrain Deputy Public Defender Zohra Bakhtary in his courtroom. The Clark County Defenders Union criticized the judge’s actions Thursday in a letter to news outlets.

“Judge Hafen improperly handcuffed one of our public defenders simply for doing her job,” according to the letter, signed by a 12-member board of directors. “His actions were unreasonable and unprecedented. Judge Hafen was wrong.”

The union represents about 105 lawyers from the Clark County public defender’s and special public defender’s offices, said its president, Ryan Bashor.

A surveillance video made public Thursday shows Hafen pointing to a court marshal and then at Bakhtary, standing at the defense table in Courtroom 6A. The video does not capture any audio.

Court transcripts indicate that Hafen told Bakhtary to “be quiet,” as she tried to argue that a man facing larceny charges should not be thrown behind bars. After Bakhtary tried to speak, the judge asked her if she wanted to be found in contempt.

There was a brief exchange between the judge and lawyer before the marshal approached Bakhtary, who placed her hands behind her back, and put her in handcuffs. Bakhtary was led out of the frame, while the defendant, Daniel Fernandez, stood alone in a white, short-sleeved shirt at the defense table.

Moments later the same marshal walked up behind the defendant and took him into custody. Fernandez was ordered to serve six months in jail for a larceny charge that he picked up after being ordered to perform community service on other similar charges.

“Go ahead and un-cuff Zohra,” the judge then stated, according to court transcripts. “I think she’s learned a lesson.”

The defense group wrote that with Bakhtary in handcuffs, Fernandez was denied his right to an attorney.

Hafen “violated one of our most sacred, fundamental, and constitutionally protected rights,” according to the letter.

About three minutes after being led away, Bakhtary walked back into the frame, her hands free.

In an interview with the Review-Journal earlier this week, Hafen said he ordered Bakhtary handcuffed because “there needs to be proper decorum with attorneys.” The judge could not be reached for comment Thursday.

Bakhtary, who has worked about once a week in Hafen’s courtroom for three years, said she “did not act unprofessionally. I simply wanted the Court to listen to my argument and consider it before remanding my client.”

Prosecutor Jake Villani said Bakhtary had been given a chance to argue for her client and was interrupting the judge’s ruling.

“My recollection is consistent with the transcripts,” he said. “The judge gave her ample opportunity and warning before taking action.”

Public Defender Phil Kohn has said that an audio/video system, known as JAVS, should have been turned on while the judge was holding court. Hafen said he does not use the system because of potential technological glitches, and the court reporter’s transcript is the official court record.

“There’s nothing unusual about JAVS being disabled in that courtroom,” Villani said. “I’m not aware of a Justice Court that uses the JAVS system actively.”

In Thursday’s letter, the defense group wrote that the transcript “appears incomplete.”

Letter from CCDU

Bakhtary said that after she was released she asked the judge for a break because she was shaking and wanted to call her boss.

The judge denied her request and asked her to continue with her caseload.

That exchange should have been captured in the transcripts, Bashor said, though it is unclear whether proceedings were on the record at that point.

“I can understand why it may not be included,” Bashor said. But “the more thorough thing, in the union’s position, would have been to include the aftermath.”

*On December 3, 1991, judicial abuse of Staff Attorneys resurfaced when Staff Attorney Michelle Myers was handcuffed for alleged lateness and for “smiling” at Criminal Court Judge Bernadette Bayne; Myers had asked that her client, charged with a misdemeanor, be unshackled for a pre-trial hearing. On December 12, Brooklyn CDD union members protested by walking off the job and picketing Criminal Court. Several days later, 100 Brooklyn CDD attorneys voted to boycott Bayne’s courtroom to protest both Myers’s treatment and the contempt citations issued by judges against four other Staff Attorneys — all of whom were either incarcerated or handcuffed for periods ranging from a few minutes to two hours for “being late.”

When, in February 1992, the State Commission on Judicial Misconduct dismissed the Society’s complaint against Bayne regarding this incident, ALAA told the New York Law Journal that “[u]ntil there exists a genuine remedy 1,000 Legal Aid attorneys facing judicial abuse in the future will remain compelled to defend our rights — and those of our clients — with immediate, direct action.(10)”

For the final twenty years of his life, Robert Zuss (1943-2006) was a public defender at The Legal Aid Society in Brooklyn.

Zuss helped forge leadership within the Association of Legal Aid Attorneys/UAW Local 2325 (ALAA) that promoted bottom-up democratic decision-making; membership mobilization conducted jointly with support staff members of 1199SEIU; and racial, economic and social justice — at home and abroad.

December 17, 2014

So proud to be with hundreds of fellow Association of Legal Aid Attorneys – UAW 2325 members, Attorneys of Color of Legal Aid (ACLA), 1199 members and other public defenders who walked out of Brooklyn Criminal Court and joined today’s die-in at Brooklyn House of Detention, for Eric Garner, Mike Brown and all other victims of police violence, mass incarceration and a racist criminal justice system. We also took over Brooklyn Bridge Place and marched through downtown Brooklyn.

December 4, 2014

UAW 2325 and 1199 union members from Legal Aid Society, Brooklyn office, stood with our clients and communities by leading a 100-strong contingent across the Brooklyn Bridge to rally with thousands tonight at Foley Square.

Tuesday, August 12, 2014 ALAA MEMBERS DEMAND NYPD ACCOUNTABILITY FOR DEATH OF ERIC GARNER

On July 17, 2014, a group of NYPD officers killed Eric Garner, a 43-year-old, African-American resident of Staten Island. The New York City Chief Medical Examiner’s office ruled Mr. Garner’s death a homicide, the result of a “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police.” A video of the encounter shows a police officer choking Mr. Garner from behind and dragging him to the ground. As the officer chokes him and as more officers pile on top of him, Mr. Garner repeatedly gasps, “I can’t breathe, I can’t breathe,” until he loses consciousness.

The officers claim that Mr. Garner had been selling loose cigarettes.

Mr. Garner was a client of The Legal Aid Society and a repeated target of NYPD harassment. As members of the Association of Legal Aid Attorneys/UAW Local 2325, representing more than 1,000 attorneys, we stand in solidarity with Mr. Garner’s family and with community members who have been under siege for far too long.

As attorneys, we see instances of police violence against our clients everyday. Moreover, we see how disruptive and destructive the criminal justice system can often be, and how it degrades and dehumanizes the most vulnerable members of our community and vastly diminishes their access to a range of basic survival opportunities. A seemingly innocuous police encounter can lead to a range of serious consequences affecting one’s housing, immigration status, and employment. In the case of Mr. Garner, the police encounter led to him being killed.

The 120th Precinct, where Mr. Garner was killed, is a hotbed of police abuse, with seven of the city’s top ten officers most frequently sued for civil rights violations. Yet the national public outrage at Mr. Garner’s killing and the 120th’s record of abuse has done little to deter more police violence. After Mr. Garner’s death, even more videos have surfaced of the police attacking the men and women of our communities. We have seen officers choke a pregnant woman and stomp on a young man in Brooklyn. We have seen EMTs intervene to prevent officers from assaulting a restrained, mentally ill man. We have seen reports documenting the rampant culture of abuse at Rikers Island. In short, we have seen the violence continue.

Sadly, these are not isolated incidents: they represent a tragic pattern of abuse of poor people and people of color at the hands of the NYPD, a pattern that stretches back to the killings of Kenneth Chamberlain, Sr., Ramarley Graham, Sean Bell, Amadou Diallo, Anthony Baez, and many others. In fact, the circumstances surrounding Mr. Garner’s death mirror the NYPD’s killing of another Staten Island resident, Ernest Sayon, twenty years ago. Like Mr. Garner, Mr. Sayon was choked to death in police custody – but in his case, there was no video of the incident, and no officers were ever held accountable.

This time, it will be different. While we are outraged by Mr. Garner’s death, and by police violence in all forms, we are heartened by the strong community response on the North Shore of Staten Island and throughout the city. We demand that our elected officials heed the call of our communities and fight to protect the rights and dignity of poor people and people of color in New York. We demand wholesale changes in the culture and practices of the NYPD. We demand an end to “broken windows” and “stop and frisk” policing, which have targeted New Yorkers on the basis of race and poverty for far too long.

We demand accountability from the NYPD, Police Commissioner William Bratton, Staten Island District Attorney Daniel M. Donovan, Jr., and Mayor Bill de Blasio. We, the undersigned members of the Association of Legal Aid Attorneys/UAW Local 2325, demand justice for Eric Garner.

The undersigned members of the Association of Legal Aid Attorneys/UAW Local 2325 and 1199SEIU Healthcare Workers East hereby join in grieving Legal Aid Society management’s attempt to ban “non-work-related matter involving the current situation in the Middle East,” as reflected in the two warnings (attached below), concerning messages to the ALAA email discussion list.

In addition, such discrimination contributes to a broader hostile work environment for Arabs, Muslims, Palestinians and other people of color, in violation of ALAA Collective Bargaining Agreement § 3.1.1. (“Non-Discrimination”), CBA § 3.1.2. (“Affirmative Action”), relevant 1199SEIU contractual provisions, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

It is irrelevant that ALAA has agreed to eventually relocate its discussion list from the Society’s email system. As long as the current list exists, management may not selectively censor particular views or entire topics, while at the same time turning a blind eye to innumerable political and “non-work-related” messages — often sent by the very same list members who demand censorship of others.

There is no “heckler’s veto” or “Palestine exception” when it comes to free speech.

Moreover, since recipients can easily delete, or configure their individual Outlook settings to automatically “opt-out” of, Palestinian rights (or any other) messages, management may not engage in selective censorship under the guise of additional, unfathomable, unspecified “op-out” procedures.

We call on management to rescind this ban, and respect our free speech rights.

Signers (List in Formation)*Denotes Attorneys of Color of Legal Aid (ACLA) member

In 2009 and 2013, The Legal Aid Society entered into agreements with the Association of Legal Aid Attorneys to achieve compliance with the Society’s longstanding e-mail policies and to clarify the parameters of Article 1.5 of the collective bargaining agreement with respect to ALAA’s use of the Society’s e-mail system. (See copies of the attached agreements.) The 2009 agreement provides that on an interim basis, the Society agrees to permit ALAA members to create personal e-mail groups, provided however that before and after setting up a personal e-mail group any and all potential or existing members of the personal e-mail group must be given an opportunity to opt out of the personal mail group. Yesterday and today, we received several e-mails to ALAA members about a non-work-related matter sent by you involving the current situation in the Middle East, along with complaints from several ALAA members who received such communications who have elected to opt out of receiving them under the 2009 agreement. As we have previously advised you, it is a violation of the Society’s e-mail policy and the 2009 agreement to send unwanted non-work-related communications to Society employees who have opted out of receiving such communications. We are directing you to cease such actions and expect you to abide by your obligations under the 2009 agreement with ALAA and the Society’s e-mail policy. (Emphasis added.)

As we reiterated in an e-mail to all staff on June 26, The Legal Aid Society’s e-mail system is to be used for work-related communications. Our e-mail policy is clearly set forth in the Employee Handbook, which has been posted on LASnet for many years. Relevant portions were quoted in an e-mail today to all LAS staff. You recently sent a non-work-related e-mail communication to all ALAA and 1199 staff about recent events in the Middle East, and we have received a number of complaints from staff members who object to the communication. We are directing you to cease sending non-work-related communications that violate the policy and expect you to abide by your obligations under the Society’s e-mail policy. (Emphasis added.)

For the final twenty years of his life, Robert Zuss (1943-2006) was a public defender at The Legal Aid Society in New York City.

Zuss helped forge leadership within the Association of Legal Aid Attorneys/UAW Local 2325 (ALAA) that promoted democratic decision-making; membership mobilization conducted jointly with support staff members of 1199SEIU; and racial, economic and social justice — at home and abroad.

For the final twenty years of his life, Robert Zuss (1943-2006) was a public defender at The Legal Aid Society in Brooklyn.

Zuss helped forge leadership within the Association of Legal Aid Attorneys/UAW Local 2325 (ALAA) that promoted bottom-up democratic decision-making; membership mobilization conducted jointly with support staff members of 1199SEIU; and racial, economic and social justice — at home and abroad.